Assumpsit. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1914, of the superior court by Sawyer, J., on the defendants' exception to the denial of their motion for a directed verdict. The action was brought by Martin Monahan in his lifetime and is now prosecuted by his administrator. May 20, 1911, Patrick J. Martin mortgaged certain personalty to John S. Myers and subsequently executed a second mortgage of the same property to Lydia Martin.
Decided 1915-04-06
Young, J.
¶1
It is immaterial in so far as this case is concerned whether the plaintiff is or is not charged with Patrick’s knowledge; for it is the rule that the proceeds of property sold on execution be distributed' in satisfaction of the liens in the order of their priority. The right, and the only right, of either of -the Martins in or to the proceeds of the property was the right to receive what remained after the Myers and Bell claims were satisfied. Since this is so, it is of no consequence whether the defendants’ agreement to permit Monahan to retain the $109 and apply it on Lydia’s claim was intended as a gift, to her, or was made by mistake. In either case, it was an agreement she could enforce over the defendants’ objection only in so far as she was entitled to the proceeds of the sale. It follows, therefore, that when Drew called on Monahan to pay the Myers claim, he should have paid it out of the money he was holding for Lydia; that is, it was Monahan’s duty to pay the Myers
*535
claim and charge it to Lydia’s account, and such a payment would have been an answer
pro tanto
to her claim against him. There is no force, therefore, in the plaintiff’s contention that Drew was attempting to defraud Monahan when he insisted on his paying the Myers claim; for so much of the purchase price remaining in his hands as was necessary to satisfy this claim in equity and good conscience belonged to Myers — not to Lydia or to Patrick.
¶2
Exception sustained: judgment for the defendants.
